The Supreme Court of Canada (“SCC”) recently denied leave to appeal from the Ontario Court of Appeal (“ONCA”) decision in McAteer v Canada (Attorney General), 2014 ONCA 578. The case was a challenge to the requirement under the Citizenship Act, RSC 1985, c C-29, to swear an oath to the Queen during the Canadian citizenship ceremony. The three people who brought this challenge had different reasons for doing so, yet were united in their opposition to the oath on the basis that it violates their rights to freedom of religion and conscience, freedom of expression, and equality rights guaranteed by the Charter.

The appellants, Michael McAteer, Simone Topey and Dror Bar-Natan, continued a challenge that had been brought (and dismissed) earlier by human rights lawyer Charles Roach in the Federal Court, and then brought again by Roach to the Ontario Superior Court. When Mr. Roach died in 2012, Michael McAteer and the appellants continued the case.

Micheal McAteer, is a retired journalist with the Toronto Star who believes that the oath is contrary to his egalitarian beliefs and support for a republic. Simone Topey is with the Black Action Defence Committee and opposes the oath based on her Rastafarian religion, and Dro Bar-Natan is a professor at the University of Toronto who opposes the oath as a violation of his conscience and opposition to a class system.

An individual in the citizenship ceremony is required to give the oath as follows:

I swear (or affirm) that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth II, Queen of Canada, Her Heirs and Successors, and that I will faithfully observe the laws of Canada and fulfill my duties as a Canadian citizen.

At the appeal court level, much of the case hinged on the meaning of the oath, as the appellants argued that the plain meaning of the oath required them to swear allegiance to the Queen as an individual. Indeed, the citizenship website also indicates that, “in Canada, we profess our loyalty to a person who represents all Canadians and not to a document…”

The appellants took issue with swearing their allegiance to the Queen and submitted, “personal fidelity to this foreign monarch is antiquated, undemocratic and elitist in that it perpetuates hereditary privileges and is contrary to the conception of equality”(para 24). In addition to equality rights, the appellants argued that their religious rights were infringed by the requirement that the Queen be Anglican, thus making the oath supportive of one religion over others.

The appellants argued that the oath requirement was contrary to their political beliefs and amounted to discrimination based on non-citizen status and place of origin. They were also concerned for their future ability to speak out against the monarchy after taking the oath. As such, the appellants considered the oath to exactly mean what it described and thus had a “plain meaning” interpretation of the oath.

Purposive Interpretation vs. Plain Meaning of the Oath

In contrast with the appellant’s “plain meaning” interpretation of the oath, was the Court’s preference for the “purposive” understanding of the oath. Following the purposive approach meant that it was necessary to analyze the “history, purpose and intention behind the oath” (para 6). As such, this lead Justice Weiler, writing for the Court, to compare the citizenship oath to the wording of the oath required for Parliament and Senate members under The Constitution Act, 1867. Justice Weiler found that the harmonization principle supports a similar interpretation to the oath under the Citizenship Act.

The Court also reasoned that the Queen must not be seen merely as an individual, but as a symbol of the state that she represents. As such, the Court adopted similar reasoning to the Federal Court of Appeal ruling in the previous Roach case where MacGuigan J.A. held that the oath requires the applicant to “express agreement with the fundamental structure of our country as it is” (p.416).

This view was given further support in the conclusion that,

[54] Although the Queen is a person, in swearing allegiance to the Queen of Canada, the would-be citizen is swearing allegiance to a symbol of our form of government in Canada. This fact is reinforced by the oath’s reference to “the Queen of Canada,” instead of “the Queen.” It is not an oath to a foreign sovereign. Similarly, in today’s context, the reference in the oath to the Queen of Canada’s “heirs and successors” is a reference to the continuity of our form of government extending into the future.

Nevertheless, whether the oath represents a person or a state, it would seem that surely either characterization must be included under the spectrum of political beliefs that the appellants argued were infringed by this requirement.

The Charter Arguments

In contrast to the application judge’s conclusion that the appellants’ freedom of expression had been violated, the ONCA found that the oath did not infringe the appellants’ Charter rights. However, it did have an “effect” on the appellants’ freedom of expression. Yet the effect did not establish the need to remove the oath requirement given the following reasons given by ONCA:

1) The appellants have the ability to freely express their dissenting views as to the desirability of a republican government;

2) The effect on their freedom of expression flows from their misunderstanding of the nature of the oath to the Queen of Canada and a patently incorrect interpretation cannot ground a finding of unconstitutionality;

3) The remedy sought by the appellants only addresses their concern at a superficial level and does not resolve their real concern;

4) The appellants’ argument would ignore the role of the Queen as part of Canada’s cultural heritage and

5) Purposively interpreted, the reference to the Queen of Canada is a symbolic reference to our form of government, a democratic constitutional monarchy, which promotes Charter values. The fact that the broader public interest is furthered by the oath strengthens my conclusion that there is no s. 2(b) violation.

Although Justice Weiler found no infringement, the section 1 analysis was still undertaken to determine whether the infringement, if found, would be justified by a pressing and substantial objective. Here Justice Weiler concluded that it would be a justifiable infringement.

In terms of freedom of expression, the Court applied the Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927 analysis to conclude that oath is expression, but its purpose is not to control expression. Rather, for the Court, the purpose of the oath is to ensure that prospective citizens are serious about Canadian citizenship.

Conclusion

The appellants argued for a plain meaning interpretation of the oath, as it is apparent that they subjectively interpret the oath as professed to the Queen individually. However, the Court found that a purposive interpretation of the oath leads to the conclusion that the purpose of the oath is in fact to profess a loyalty to the state.

This level of legal abstraction may resonate with some, but to the appellants in this case it was viewed as unnecessary given their willingness to affirm their citizenship to Canada—not the Queen. While the Court suggested that the Queen is a mere symbol, by that reasoning, why is a requirement maintained if it is just a symbol? Although the Court found, “the oath promotes the unwritten constitutional principles of the rule of law and democracy, as well as the values for which this country stands,” (para 74) to the appellants, the Queen represents inequality, colonialism and undemocratic values that a purposive interpretation cannot resolve.